United States v. Phillip Dunlap

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0371n.06
No. 10-2621
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 05, 2012
UNITED STATES OF AMERICA, )
LEONARD GREEN, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF MICHIGAN
PHILIP MAURICE DUNLAP, )
)
Defendant-Appellant. )
Before: CLAY and GIBBONS, Circuit Judges, and KORMAN, District Judge.*
Per Curiam. On this appeal from a judgment, entered after a guilty plea, convicting him of
distributing cocaine base in violation of 18 U.S.C. § 841, Philip Maurice Dunlap argues that the
district judge erred in refusing to grant him a reduction for acceptance of responsibility and in
refusing to deem him eligible for a safety valve reduction under 18 U.S.C. § 3553(f). We review a
“district court’s determination of whether to apply a Guidelines reduction under the clear-error
standard.” United States v. Bacon, 617 F.3d 452, 456 (6th Cir. 2010) (citing United States v.
Paulette, 457 F.3d 601, 608 (6th Cir. 2006) (applying the clear error standard to a review of a district
court determination whether a defendant has accepted responsibility)). Likewise, a district court’s
*
The Honorable Edward R. Korman, United States District Judge for the Eastern District of
New York, sitting by designation.
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United States v. Dunlap
decision whether to grant a safety valve relief is also reviewed for clear error. United States v.
Haynes, 468 F.3d 422, 426 (6th Cir. 2006).
The defendant bears the burden of proof to show by a preponderance of the evidence that he
or she accepts responsibility for the crime committed. Bacon, 617 F.3d at 458. One way to do so
requires that the defendant “truthfully admit[] the conduct comprising the offenses of conviction .
. . .” USSG § 3E1.1 cmt. 1(A) (2011). Pleading guilty does not automatically entitle a defendant
to the reduction. See Bacon, 617 F.3d at 459 (upholding the denial of acceptance of responsibility
reduction where the defendant pleaded guilty but equivocated about certain facts, repeatedly made
false statements, and blamed others for his crime).
As to the safety valve relief, five conditions must be met for a defendant to be eligible. Only
one is relevant here, and it provides that “not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same course of conduct or of a common
scheme or plan . . . .” 18 U.S.C. § 3553(f)(5). The defendant also bears the burden of proving
entitlement to the safety valve reduction by a preponderance of the evidence. Haynes, 468 F.3d at
427. “Unlike other reduction provisions such as . . . acceptance of responsibility . . . , the provisions
of . . . 18 U.S.C. § 3553(f) require a defendant to reveal a broader scope of information about the
relevant criminal conduct to the authorities.” United States v. O’Dell, 247 F.3d 655, 675 (6th Cir.
2001) (quotation omitted).
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United States v. Dunlap
While a reduction for acceptance of responsibility and safety valve relief are discrete legal
concepts, we discuss them together because, on the record here, Dunlap’s arguments factually
overlap. Specifically, whether Dunlap should have been granted either turns on the truthfulness of
Dunlap’s story about how he received the crack and to whom he sold it. Dunlap told investigators
and probation officials that he received narcotics from his friend Echols for safekeeping and only
retained possession because Echols died shortly after. Dunlap originally said he buried the crack and
dug it up six months later for sporadic use and sale approximately six months before retrieving the
remainder he sold to the undercover agents. Subsequently, he told probation that after burying the
crack, he dug it up approximately one year later, traded a few ounces for marijuana and sold the rest
in ounce-size quantities to two or three different people.
Not only do the inconsistencies between the account Dunlap gave to investigators and the
account he gave to probation cast doubt on his credibility, the narrative he presented is far-fetched.
Multiple undercover officers purchased crack from Dunlap in the course of the five undercover
purchases that lead to his arrest. Moreover, the witnesses Dunlap presented at sentencing failed to
corroborate his story in any meaningful way.
In sum, the district judge accurately found that there was no evidence to support Dunlap’s
story about the source of the drugs, and that it was “inherently incredible.” Accordingly, the refusal
to grant Dunlap a reduction for acceptance of responsibility or safety valve relief was not clearly
erroneous.
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United States v. Dunlap
AFFIRMED.
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